RE: August 14, 2017 FOIA Correspondence Regarding the Office of the Governor

Dear Mr. Chase:

We write in response to your correspondence, received in its entirety on August 14, 2017, challenging the Office of the Governor (“OGov”)’s supplemental response to your January 30, 2017 Freedom of Information Act (“FOIA”) request for records. We treat your correspondence as a petition for a determination (“Petition”) of whether OGov violated FOIA in connection with your request. We invited OGov to submit a response to the Petition and received OGov’s response on August 17, 2017 (“Response Letter”), which OGov supplemented on August 18, 2017.[1] We also received your August 22, 2017 reply (“Reply”).[2]

We have reviewed the record consistent with the Delaware Superior Court’s recent decision in Flowers v. Office of the Governor,[3] wherein the Court found that “an affidavit, along with a detailed written submission that indicates the reason for the denial may be sufficient to satisfy the public body’s burden.”[4] Here, OGov has provided an affidavit from both its Chief Legal Counsel and its Deputy Legal Counsel, together with a detailed written submission that indicated the reasons for the denial of access to the redacted information. As we are satisfied that OGov’s counsel applied well-recognized FOIA exemptions to its supplemental production,[5] it is our determination that OGov did not violate FOIA as alleged. We nonetheless caution OGov, as the Court did in Flowers, to avoid the use of inclusive language in its invocation of privileges.[6]

[1] OGov’s August 17, 2017 included unsigned affidavits from OGov’s Chief Legal Counsel and its Deputy Legal Counsel. OGov provided notarized versions of the same affidavits on August 18, 2017.

[2] We note that this FOIA dispute relates to a previous petition that you submitted with this Office on March 8, 2017. While this Office does not exercise continuing jurisdiction over FOIA matters, we have determined that the unique circumstances of this matter dictate that the record for the instant matter include the record from the prior matter. As such, the record from your prior petition, inclusive of our July 31, 2017 FOIA determination, Del. Op. Att’y Gen. 17-IB35, 2017 WL 3426275 (July 31, 2017), is hereby incorporated by reference in its entirety. Included in that record is OGov’s February 14, 2017 response to your request.

[4]Id. at *13. See also 29 Del. C. § 10003(h)(2) (“If the public body denies a request in whole or in part, the public body’s response shall indicate the reasons for the denial. The public body shall not be required to provide an index, or any other compilation, as to each record or part of record denied.”) (emphasis added).

[5] Specifically, OGov redacted certain information pursuant to 29 Del. C. §§ 10002(l)(17)(a) and 10002(l)(6), to include the executive privilege and the attorney-client privilege. In our prior opinion, we referenced the “executive privilege” as a “common law” privilege. However, we note that the “executive privilege” is also a constitutional privilege. See Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 785 (Del. Super. 1995) (“This Court, therefore, recognizes as part of the constitutional and common law of the State the doctrine of executive privilege with respect to the source and substance of communications to and from the Governor in the exercise of his appointive power.”) (emphasis added).

[6]See Flowers, 2017 WL 3425674, at *14 n.158 (“The Court notes that a public body should be careful with the use of inclusive language in its invocation of privileges.”).

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